Citation Nr: 9901424
Decision Date: 01/21/99 Archive Date: 02/01/99
DOCKET NO. 97-26 193 ) DATE
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On appeal from the
Department of Veterans Affairs Medical and Regional Office
Center in Wichita, Kansas
THE ISSUE
Entitlement to an increased evaluation for Crohn’s Disease,
currently evaluated as 30 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
R. M. Panarella, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1973 to May 1977.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from the December 1996 rating decision of
the Department of Veterans Affairs Regional Office in
Wichita, Kansas (RO).
REMAND
A preliminary review of the record discloses that the
veteran, in a claim for an increased disability evaluation
dated May 1996, provided an authorization for release of
information from John Owen, M.D. The RO’s rating decision of
December 1996 reported that the request to Dr. Owen was
returned due to an insufficient address. The veteran
subsequently provided a complete address for Dr. Owen in her
Notice of Disagreement dated February 1997 and in her VA Form
9 dated July 1997. The RO apparently never made another
request for medical records from Dr. Owen.
The veteran also reported in her May 1996 claim that she had
received treatment for her disability at VA Medical Centers.
At that time, the RO requested treatment reports from the
Leavenworth VA Medical Center from May 1995 to the present.
These records were obtained and associated with the claims
file but it remains unclear whether the veteran received
treatment at other times or at different facilities.
Once a veteran has presented a well-grounded claim, the VA
has a duty to assist her in developing the facts that are
pertinent to the claim. See 38 U.S.C.A. § 5107(a) (West
1991). When the veteran has provided specific information
and called the records to the attention of the VA, the VA
must provide assistance in obtaining relevant records from
private physicians. Olson v. Principi, 3 Vet.App. 480
(1992); Culver v. Derwinski, 3 Vet.App. 292 (1992).
Moreover, the VA is deemed to have constructive knowledge of
documents generated by the VA and, in this case, has actual
knowledge of the existence of those records. As such, they
are considered to be evidence that is of record at the time
any decision is made, and should be associated with the
claims file. See Bell v. Derwinski, 2 Vet.App. 611 (1992).
See also VAOPGCPREC 12-95, 60 Fed. Reg. 43186 (1995) (“…an
[agency of original jurisdiction’s] failure to consider
records which were in VA’s possession at the time of the
decision, although not actually in the record before the AOJ,
may constitute clear and unmistakable error…”)
Therefore, in order to give the veteran every consideration
with respect to the present appeal, it is the opinion of the
Board that further development of the case is desirable.
Accordingly, this case is REMANDED for the following actions:
1. After securing authorization from the
veteran, the RO should obtain and
associate with the claims file any and
all records of Dr. Owen pertaining to the
treatment of the veteran.
2. The RO should obtain and associate
with the claims file any and all records
pertaining to the treatment of the
veteran from the appropriate VA Medical
Centers.
When the development requested has been completed, the case
should again be reviewed by the RO on the basis of the
additional evidence. If the benefit sought is not granted,
the veteran and her representative should be furnished a
supplemental statement of the case, and be afforded a
reasonable opportunity to respond before the record is
returned to the Board for further review.
The purpose of this REMAND is to obtain additional
development and the Board does not intimate any opinion as to
the merits of the case, either favorable or unfavorable, at
this time. The veteran is free to submit any additional
evidence she desires to have considered in connection with
her current appeal. No action is required of the veteran
until she is notified.
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1998).
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